These are most valuable enactments for us to-day. They clearly draw the line of demarcation between Land and Sea and prohibit the Admiralty Courts from interfering with matters done "within the realm"; and they show that even thus early the Sea was not deemed to be "within the realm," which is the area to and over which the Common Law of England then extended and still extends.

By the 25 Henry VIII., c. 15, the trial of certain offences previously within the jurisdiction of the Admiral was transferred to Commissioners to be appointed by the King under whom trials were to be held in such county as the Commissioners should direct "according to the common course of the Laws of the realm used for such offences when done upon the land within the realm."

This did not interfere with or blend the Laws. It did not even abrogate or destroy the Admiral's jurisdiction but it transferred, for the purpose of trial only the jurisdiction talem qualem from the Admiralty to another Court. A similar transfer was made by 4 & 5 Wm. IV., c. 36, which established the Central Criminal Court and empowered it to try "offences on the High Seas within the jurisdiction of the Admiralty of England." This still left the Admiral's jurisdiction intact except for trial purposes.

The High Seas within this section were judicially defined to be all Ocean Seas, bays, etc., "below lowwater mark" in Re The Mecca, 1895, P. 107, and in Reg. v. Anderson, L. R. 1 C. C. R. p. 168.

During the course of the 19th century while the claims to Sovereignty of the Sea or to ownership of any part of it were gradually discarded, international Law was steadily asserting itself.

International Law is the accumulated Compacts or Treaties between Sovereign Nations based upon the Jus Naturale defining the rights and obligations of each Nation, and affording mutual protection in relation to matters in which all have a common interest.

Among the matters so defined is the Sea with the right of Nations therein.

While it has been now accepted by International Law that beyond the ebb and flow of the tide, or as it is called below the low-water mark of every country, the water is the Open Sea and common property of every Nation under the sun, a belt of that Open Sea to the extent of a Marine League from the shore has been attributed by the compacts of the Sovereign Nations themselves to each one of them which is bounded by the Ocean for protective purposes.

This is what has been described as "The Territorial Waters."

Like the contracts of individuals, these compacts of the Nations carry Rights and impose Obligations.

The Rights are not proprietory rights. They are usufructuary rights as for instance the right of fishing, the right of imposing tolls and tariffs, and general rights of administration and control for protective purposes; and among the obligations is one to keep these Territorial Waters open for the Navigation of the ships of all Nations which are not in a state of war with the country controlling it.

The summum jus of the matter is that each Nation bordered by the Ocean is authorized by the conjoint Nations of the world to administer these Territorial Waters, not exclusively in the interest of itself, but in the interest of all for purposes of commerce and navigation.

In times of war these Territorial Waters become an outside rampart, and while the country enclosed by them is not a belligerent they are neutral; but once it does become a belligerent an invasion or entrance upon them is an act of aggression.

I renounce the war aspects of the subject, as, like most of my readers, I am surfeited with the subsequential slush from the recent conflict.

I repeat that there is no proprietory right or interest in these Territorial Waters acknowledged as belonging to any Nation. The term itself is a mis

nomer. It implies what is contradictory of the truth; and for accuracy sake it should be "Territorial administrative Waters" as Twiss clearly points out in his great work on the Law of Nations.

So ample however is the administrative authority that every Sovereign Nation with regard to its own Territorial Waters, can legislate as it deems right so long as what it enacts is not in contravention of interNational Law.

I do not doubt but that the Imperial Parliament could enact that the Territorial Waters within the Empire are a part of every country which they surround or bound, so long as it provided that all the rights of other Nations under inter-National Law or existent compacts were to be kept inviolate and preserved intact.

But the Imperial Parliament has, like the Parliaments of all other countries, wisely abstained from so perilous an adventure.

All that the Imperial Parliament has enacted is the "Territorial Waters Jurisdiction Act, 1878" (41 & 42 Vic. c. 73).

Notice the terminology of the title. It is a "jurisdiction" Act; and it was passed in consequence of a celebrated case which came before the Courts in England in 1876, known as the Franconia Case or the Queen v. Keyn, reported in 2 Ex. D. p. 71.

This was a case where a German vessel had rammed an English ship through reckless pilotage and in disregard of the navigation rules within the Territorial Waters of England, about 11⁄2 miles off Dover. The English ship sank and a woman was drowned. German captain was indicted for manslaughter and was found guilty.

The

There was an Appeal in which the radical points were raised that the culprit was a German; that the ship on which he was, was a German ship; that the English Law did not apply to him; that the English Courts had no jurisdiction over him; and that he was amenable only to the Law of his own country in

whose territory he was, being on its registered ship, when the charged offence was committed.

Thirteen of the Judges heard the arguments on the Appeal in the Exchequer Chamber; and the reports of their judgments occupy some 200 pages.

Without disparaging their lore and learning, they certainly display the symptoms of sudden immersion in the deep sea of legal confusions; and every one seizing a raft struck for a footing somewhere. Most of them reached the common point that unless the Common Law extended to the Territorial Waters the culprit was amenable to no other Law as the criminal part of the Admiralty Law did not extend to Foreigners in foreign ships. A few of them then took a header to reach the point that the alleged crime was.committed on a British ship which was British territory and subject to the Common Law. One or two struck for the reef that the Territorial Waters were part of the Sovereignty of the realm of England, but they were so encumbered with the trappings of antiquated and effete dogmas that they merely gasped, gave a splash and sank.

The majority reached solid ground, but in doing so they overturned the orthodox notions of 90 per cent. of the lawyers of the time; and the public at large stood aghast.

The decision is momentous as a revolution in legal ideas, and it stands accepted to-day as incontrovertible.

Here are a few of its points:

(a) That the Law applicable to the land of a country has no application beyond the land limit. (b) That the country extends to low-water mark only.

(c) That the Territorial Waters are part of the High Seas; and that the High Seas are not within the realm.

(d) That there is a total absence of authority to support the doctrine that the realm of England extends beyond the limit of the country.

(e) That the country extends to low-water mark where the High Seas begin.

If the Sovereignty of the Land and the Sea had been identical or if, as had formerly been the accepted doctrine, the Territorial Waters were an extension of the realm or of the land boundary or limits, the Common Law would have prevailed; and the culprit could have been convicted under it.

But the Court held the Common Law was limited to the land or the realm; and that the Admiral was never invested with any Law over a Foreigner for a criminal offence committed while aboard a foreign ship.

At the suit of the owners of the vessel injured, he had ample Law to apply to the German ship and its owners for the tort committed; but the charge was for a crime committed on the High Seas within the Territorial Waters; and the conviction was quashed.

With the whole question of the Territorial Waters their Sovereignty and ownership thus laid bare, what did the Imperial Parliament do?

It made no attempt to declare the Territorial Waters part of the realm. It merely enacted by the Territorial Jurisdiction Act which I have named (inter alia).

"That an offence committed by a person, whether he is or is not a subject of Her Majesty, on the open sea within the territorial waters of Her Majesty's dominions, is an offence within the jurisdiction of the Admiral, and the person may be . . . tried and punished accordingly."

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And it defined (inter alia) the Territorial Waters

"Such parts of the sea adjacent to the coast of the United Kingdom or other part of H. M.'s dominions as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions."

This left the Territorial Waters precisely as they were and as I have stated them to be something